The region that makes up the present state of Jammu and Kashmir has been linked to India for more than 5000 years. In Awantipur in the Kashmir Valley for instance, there exist remains of temples believed to be linked to the mythical Pandavas, the heroes of the Mahabharata. Similarly in parts of Jammu and Kashmir under Pakistani occupation, Mauryan era rock carvings of Budha outside Gilgit show that the region was an integral part of Mauryan empire based at Patliputra. That all parts of Jammu and Kashmir were included in the wide dominions of the great Kushan Dynasty is a fact amply attested by the combined evidence of Buddhist records and the coins, copper pieces of Kanishka and Huvishka that are found in profusion at many of the old sites of Kashmir. According to Buddhist tradition, Kanishka, who ruled from 78 AD to 140 AD, held the third Buddhist council in Kashmir and Huen Tsiang on his visit to the Valley found that the memory of the ruler was fully alive in the kingdom. In fact, the Mahayana or the Northern school of Buddhism originated in Kashmir and attained pre-eminence during Kanishka’s Buddhist council. Any attempt at tracing the history of the region in light of the problems that have manifested there in the more recent past must not ignore these cultural and historical continuities that substantuially indicate that the region has historically been an inalienable part of India and remains so to this day. ﻿

British Cabinet Mission and Indian Princes﻿

The wake of the Second World War left substantial changes in the Global Economic Order. Early in 1946, the Labour Government in Britain dispatched an all-party parliamentary delegation { also known as Cabinet Mission } to India to meet Indian leaders to stress upon the desire of the British Government for an early settlement of the Indian constitutional issue. The British Cabinet Mission of 1946 to India aimed to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership and to grant it Dominion status within the British Commonwealth and later complete Independence. The mission, dispatched by Prime Minister, Clement Attlee,included three Cabinet Ministers, Lord Pethick-Lawrence, Sir Stafford Cripps and Mr. A. V. Alexander and arrived in India on March 24, 1946. The Mission’s primary objectives were: • To hold preparatory discussions with elected representatives of the people of British India and the Indian states in order to secure agreement as to the method of framing the constitution. • Setting up of a body to frame a constitution for India.• Setting up an Executive Council with the support of major Indian political parties. Mahatma Gandhi, Sardar Vallabhbhai Patel, Maulama Abul Kalam Azad and Pandit Jawaharlal Nehru participated in these negotiations on behalf of the Indian National Congress, the main political party in British India. The negotiations were characterized by intense debate on the question of whether India was to remain united or be split up to satisfy the Muslim League’s demand for Pakistan. The Congress opposed the partition of the country.

The Cabinet Mission also presented a Memorandum on States Treaties and Paramountcy to His Highness the Chancellor of the Chamber of Princes { the Nawab of Bhopal} on the 12th of May, 1946. The brief from the text said the following:

1.”Prior to the recent statement of the British Prime Minister in the House of Commons an assurance was given to the Princes that there was no intention on the part of the crown to initiate anychange in their relationship with the Crown or the rights guaranteed by their treaties and engagements without their consent. …….. ”

The Chamber of Princes has since confirmed that the Indian States fully share the general desire in the country for immediate attainment by India of her stature. His Majesty’s Government has now declared that if the successor Government or Governments in British India desire independence, no obstacle would be placed in their way. The effect of these announcements is that all those concerned with the future of India wish her to attain independence within or without the British Commonwealth. The delegation has come here to assist in resolving the difficulties which may stand in the way of India fulfilling this wish.

The Cabinet Mission proposed a plan on the 16th of May 1946 to create a united Dominion of India as a loose confederation of provinces. The plan proposed the following: 1.A united Dominion of India would be granted independence. 2.The Muslim-majority provinces would be grouped - Baluchistan, Sind, Punjab and the North West Frontier Provimces would form one group, and Bengal and Assam would form another (Assam was a Hindu-majority province, while both Punjab and Bengal consisted of large populations of Hindus and Sikhs). 3 Hindu-majority provinces in central and southern India would form another group. 4 The Central government would be empowered to run foreign affairs, defense and communications, while the remaining powers and responsibility would vest with the provincial governments, coordinated by groups.

This plan did not win acceptance from the principal parties and had to be abandoned

The Cabinet Mission then proposed another plan on the 16th of June 1946 which proposed the partition of undivided India into two dominions, Hindu-majority India and Muslim-majority Pakistan. The princely states of India would be permitted to accede to either dominion. Though not immediately accepted, this plan proved very near to the final settlement later.When talks nearly broke down, Attlee sent Earl Mountbatten, India's last Viceroy, to negotiate the partition of India and an early withdrawal of British forces from the subcontinent. Lord Mountbatten disclosed the policy on Indian States in a special meeting of the Chamber of Princess. Relevant portions of the speech Mountbatten gave to the Chamber of Princes are noted below

” …It took two years to separate the province of Orissa from Bihar. Gentlemen , we decided that in less than two and half months we shall have to go through the partitioning of one of the biggest countries in the world with 400 million inhabitants. There was a reason for the speed. I was quite certain that while the British lordship remained, no satisfactory conclusion could be reached psychologically between parties . So once the two governments set up and separated, they would be able to try and finish out the details in an atmosphere of goodwill. Now the Indian Independence Act releases the States from all their obligations to the Crown. The States will have complete freedom, technically and legally independent. The first step was to set up a machinery by which it was possible to put the two future Governments of India (The Dominions of India and Pakistan) into direct touch with the States. So I conceived the scheme of setting up two States departments within the future Governments. The States Departments are to take over those subjects gradually which have nothing to do with paramountcy but which will be concerned with relations with neighbouring States and also provide the machinery to negotiate in such matters. In India, the States Department is under the admirable guidance of Sardar Vallbhbhai Patel with my own Reforms Commissioner , Mr. V. P. Menon , as Secretary. In Pakistan the department is under Sardar Abdur Rab Nishtar with Mr. Ikramullah as Secretary. But when I say that they are at liberty to link up with either of the Dominions, may I point out that there are certain geographical compulsions which cannot be evaded. Out of something like 565 States, the vast majority are irretrievably linked geographically with the Dominion of India. The problem therefore is of the greater magnitude with the Dominion of India than it is with Pakistan. In the case of Pakistan the states though important are not so numerous, and Mr. Jinnah the future Governor General of Pakistan, is prepared to negotiate thecase of each State separately and individually. But in the case of India where the overwhelming majority of States areinvolved, clearly says negotiations with each State are out of question. . The first step that I took was to suggest that in the Bill before Parliament …the Indian Independence Act… a clause should be put which would enable certain agreements to continue until renounced by either side. That was only done to ensure that there should be some continuity if in short time available it was not possible to get the agreement through with every State representative. It does not replace the need for standstill agreement. ; It gives a small breathing time. …… Now I say it is not an exaggeration to say that most Rulers and Dewans were apprehensive as to what results when paramountcy lapsed. …..You can imagine how relieved I was, and I am sure you will yourself have been equally relieved, when Sardar Vallbhbhai Patel on taking over the States Department made, if I may say so, a most statesmanlike statement of what he considered were the essentials towards agreement between the States and Dominion of India. Let us turn for one moment to the Cabinet Mission Plan of 16thMay 1946. In this Plan the proposal was that the States should surrender to the Central government three subjects. Defence, External Affairs and Communications. That was a plan, that to my belief every Ruler and State accepted as reasonable, fair and just. Therefore , I am sure you will agree that these three subjects were handled for your convenience and advantage by a larger organization. The draft Instrument of Accession was circulated as a basis for discussion { and not for publication} to the representatives of the States provided the States accede to the appropriate Dominion on three subjects only without any financial liability. But I must make it clear that I have still to persuade the Government of India to accept it. But many may be surprised to learn that that New Delhi has not been able to carry the fact down to people that the draft instrument of accession proposed to all the Princely States had the same subjects and text.”The Princely States that joined / acceded to Pakistan were very less in number. Some of them were not more than small fiefdoms. The states that could be listed are Amarkot (Umerkot) and Khairpur in Sind(also known as Rana Jagir and with a population 12000. The Ranas of Amarkot had extended assistance to the Mughal Humayun when he was escaping the Afghan Sher Shah Suri, it is said that it was here that the great Akbar, King of India was born), ,Dir (Dhir), Amb, Swat andHunza in the Frontier Provinces, Kalat and Kharan in Baluchistan and Bhawalpur in the Punjab.

Princely States, Princes and Dominions﻿

The Indian Independence Act (An Act to make provisions regarding the setting up of two independent Dominions in India and to substitute other provisions for certain provisions of the Government of India Act, 1935.) with the setting up of those Dominions which apply outside those Dominions, and to provide for, other matters consequential on or connected) was passed by British Parliament on the 17th of June 1947 but the future of Princely States had already been somewhat defined in memorandum dated 12th May 1946 on States Treaties and Paramountcy as was presented by Cabinet Mission to Chancellor of Chamber of Princes in India ( the Nawab of Bhopal).The British Parliament's Indian Independence Act, 1947 received Royal Assent on 18th July on the same year creating two independent Dominions of India and Pakistan out of the British Indian Provinces.The Act also freed the Indian Princely States within the British Empire from the Crown's paramountcy but denied to them, dominion status while advising them to accede to India or to Pakistan in their own interest. The power was transferred to the people in British India. The Government of India Act, 1935, as adopted in the Indian Independence Act, 1947, provided,

‘An Indian State shall be deemed to have acceded to the Dominion if the Governor General has signified the acceptance of an Instrument of Accession executed by the ruler thereof…..’

Pakistan and even the Britain were party to these provisions. So the choice of joining either of the Dominions was left to the rulers of the States concerned. Moreover, in the Indian Independence Act, 1947, there was no provision for any conditional accession.

The Mountbatten Plan about the partition of India and the withdrawal of the British from India by the 15th of August 1947 was announced on the 3rd of June 1947. This plan theoretically conceded an independent status to all the Princely States of Undivided India after the lapse of British paramountcy. The Plan also advised the Princes that it was in their own interest (as well as interest of Dominion of India and that of new Dominion of Pakistan) to join one of the two Dominions beforethe 15th of August (the deadline for British withdrawal ).The obligation of the British Government to defend their (Princely States’) boundaries was also to lapse. Hence the preparations for the future status/ policy/ working arrangements had started in 1946 itself at the level of Princes, the proposed Governments of Pakistan and India as well as the local leaderships in some States and in J&K in particular. As per the Cabinet Mission memorandum {12th May 1946} also, with the lapse of Paramountcy , the princes were free to accede to one or the other Dominion. The Maharaja of Jammu and Kashmir did not accede to either dominion upto15thAugust 1947. Rather he offered a standstill agreement to both India and Pakistan, Pakistan accepted it, but India wanted to discuss it further. However, despite accepting the standstill agreement, Pakistan started interfering with the functioning of the State of J&K, essential supplies were blocked and eventually tribals were led by army officers to invade Jammu and Kashmir, forcing Maharaja to accede to India

The Accession of the Princely State of Jammu and Kashmir to the Indian Union﻿﻿

The instrument of accession was signed by Maharaja Hari Singh on 26th October, 1947 in favour of India. On the very next Day , the then Governor General of India Lord Mountbatten assented to the Accession.

The text of Instrument of Accession executed by Maharaja Hari Singh was the same as was signed by other rulers of the princely States. Similarly, the acceptance of the Instrument of Accession by the Governor General was also identical in respect of all such instruments.

He was to write, "I do hereby accept the Instrument of Accession." It could not be conditional as a mere acceptance by the Governor General was complete and final. ( Indian Independence Act, 1947, provided that as from the fifteenth day of August, 1947, there shall be set up an independent Dominion known as INDIA, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify, be applicable to the Dominion of India. The Act further provided that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof).

The Instrument of Accession, signed by the Maharaja of Jammu and Kashmir stated that :

“ Where as the Indian Independence Act , 1947, provides that as from the fifteenth day of August 1947 there shall be set up an Independent Dominion known as India, and that the Government of India Act of 1935 , shall, with such omissions , additions, adaptations and modifications as the Governor - General may by order specify be applicable to the Dominion of India. And where as the Government of India Act 1935, as so adapted by the Governor General, provides that an Indian State may accede to Dominion of India by an Instrument of Accession executed by the Ruler thereof : Now therefore, I, Shriman Indar Mahendar Rajrajeshwar Maharajadiraj Shri Hari Singhji, Jammu and Kashmir Naresh Tatha Tibbet adi Deshadhipati, Ruler of Jammu & Kashmir State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and ……

3. I accept the matters specified in the schedule thereto as the matters with respect to which the Dominion Legislature can make laws for this State.

5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act ,1947 , unless such amendment is accepted by me , an Instrument supplementary to this Instrument.

9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors” need to be observed for the purpose. . ﻿

And Lord Mounbatten of Burma, the then Governor General of India signed the acceptance on 27th October, 1947 as

“ I do hereby accept this Instrument of Accession dated this 27th day of October , nineteen hundred and forty seven.”

Hence the process of Accession was Complete. It was full and final. It cant note be reversed.

It is important to emphasise that clause 5 of the Instrument of Accession reads,‘The terms of this instrument of accession shall not be varied by any amendment of the Act or of the Indian Amendment Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument’.

Thus, the State of Jammu and Kashmir became part of India and that too laid by the process laid by the British Parliament. It was assented to by the representative of British Government in India and furthermore, there was no clause/scope of self determination in the Indian Independence Act, 1947. The Indian Independence Act, 1947 did not envisage conditional Accession. The Dominion’sGovernor General had the power to accept it or reject the offer but not to keep the question open or attach conditions to it.

Failure of United Nations

On the 20th of October 1947, hordes of tribesmen from the NWFP of Pakistan riding lorries and trucks provided by Pakistani agencies led the incursion into the adjoining State of Jammu and Kashmir.

In 1948, the Government of India approached the UNSC with the request to intervene and stop the tribesmen-led incursion in Jammu and Kashmir sponsored and abetted by Pakistan.India believed the UN was the guardian of peace and rejected aggression. She invoked Article 35 of the UN Charter.Hindsight tells us that instead of banking on the intervention of the SC, India should have retaken the entire territory of the said State instead of calling a halt to her forces midway just to give peace a chance on the sub-continent.

For a clear understanding of the UN position in Jammu and Kashmir, a thorough reading of the following documents is required:1. UN Security Council Resolution 38 of 17 January 1948.2. UN Security Council Resolution 39 of 20 January 1948.3. UN Security Council Resolution 47 of 21 April 1948. 4. UNCIP Resolution of 13 August 1948. 5. UNCIP Resolution of 5 January 1949. 6. AIDE MEMOIRE of 21 December 1948.7. AIDE MEMOIRE of 22 December 1948.

The first of the six points in the UN resolution was (please specify which UN resolution is being referred to) – The unconditional withdrawal of troops sent or maintained by Pakistan, from all parts of Jammu and Kashmir. That was because UN clearly decided that the presence of Pakistani troops on any part of Jammu and Kashmir was illegal.The second point was that the Azad Jammu Kashmir government and Azad Jammu Kashmir Forces (under Pakistani control), was illegal and must be disbanded. The third point was that the territorial integrity of Jammu and Kashmir should be fully restored to what it was on 15th August 1947.The fourth point was that those displaced from their homes in Mirpur, Gilgit, Baltistan, Muzaffarabad etc. under Pakistan's illegal occupation, must be repatriated. There were 200,000 people who fled to the parts of Jammu and Kashmir under Indian control in 1947, due to the incursions of the Pakistani Tribesmen.The fifth point was that the India would maintain the required number of forces. This by far explains that there was no dispute in Jammu and Kashmir's legal status. By asking Indian army to remain in Jammu and Kashmir, UN clearly established that Jammu and Kashmir was an inalienable part of India. It should also be noted here that UN said Pakistan must withdraw its forces, and that only India must maintain its forces there, not a joint force.The 6th Point was that the Plebiscite was always India's internal commitment to the people of Jammu and Kashmir. The UN only asked if it could be conducted under UN supervision. India gave its consent to a UN Plebiscite commissioner, but he/she was to perform his/her duty under the Jammu and Kashmir government.

Close analyses of above mentioned resolutions, Aide Memoires and Communication between the then Prime Minister of India, Pt. Jawaharlal Nehru and Dr. Lozano, UNCIP Chairman, Pakistan failed to conform to the pre conditions of plebiscite. Thus the Indian Government was under no obligation to conduct it. Instead of action upon UN resolutions , Pakistan again waged war with India in 1965, which ended in the Tashkent Declaration of 10 January 1966. From this vital resolve it discerns that the Tashkent Declaration did not make any reference to the UN Security Council and UNCIP resolutions and as such those resolutions came to naught and lost their utility and relevance from January 1966 onwards; it also discerns that from January 1966 no matter remained pending in the UN Security Council relating to the State of Jammu Kashmir; it also discerns that from January 1966 both India and Pakistan were to resolve their disputes through peaceful means as envisioned in the UN Charter. This agreement appears to be significant in the sense that the property and assets --- may be known as POK and COK --- taken over by Pakistan in connection with the conflict created by Pakistan against India as intruder and aggressor have to be restored to India in order to bring a perpetual end to the conflict.Pakistan for the third time waged a war against India in 1971 in utter disregard to the Tashkent Declaration, which it conclusively lost and which resulted in the creation of Bangladesh. Having been conclusively defeated in 1971 war, the then Prime Minister of Pakistan, Zulfiqar Ali Bhutto, agreed to meet with the then Indian Prime Minister, Mrs. Indira Gandhi. The summit meeting of India and Pakistan at Shimla successfully culminated in the Shimla Agreement of 2 July 1972. The unique significance of the Shimla Agreement of 2 July 1972 is that it is an agreement on Bilateral Relations between India and Pakistan to resolve their outstanding differences bilaterally and without the interference from any third party acting as a mediatory functionary. Besides, this agreement has international sanctity because a copy was also registered with the United Nations repository; this agreement was ratified/approved by the Parliament of India under the provisions of the Constitution of India and also by the Pakistani legislature. The Shimla Agreement constitutes an international treaty between India and Pakistan, and unequivocally supersedes all the previous UN Security Council and UNCIP Resolutions

Legal and Constitutional Status of Jammu and Kashmir ﻿﻿

Pakistan never vacated the territory of the State under its occupation and did not even disband the so called AJK Army and AJK Government. India waited till 1951 for it to do so. Then, in 1951 the Constituent Assembly of Jammu and Kashmir was elected by the people of Jammu and Kashmir and empowered to draft the State Constitution. The same elected Constituent Assembly ratified the Accession of J and K to India on the 6th of February 1954. The preamble of the Constitution of Jammu and Kashmir states that “ _ We, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of Accession of this State to India which took place on the twenty-sixth day of October, 1947 to further define the existing relationship of the State with the Union of India as an integral part……”

Further section 3, 4, 5 and 147 of Constitution of Jammu Kashmirclearly states …

“Section -3. Relationship of the State with the Union of IndiaThe State of Jammu and Kashmir is and shall be an integral part of Union of India.

Section- 4. Territory of the State The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.Section - 5. - Extent of executive and legislative power of the State. The executive and legislative power of the State extends to all matter except those with respect to which Parliament has power to make laws for the State, under the provisions of the Constitution of India.Section -147. Amendment of the Constitution An amendment to this Constitution may be initiated only by the introduction of a bill for the purpose in the Legislative Assembly, and when the bill is passed in each House by the majority of not less two-thirds of the total membership of that house, it shall be presented to the Governor for his assent and, upon such assent being given to the bill, the Constitution shall stand amended in accordance with the terms of the bill: Provided that a bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed it by a majority of the total membership of assembly and by a majority of not less than two-thirds of the members of the assembly present and voting : Provided further that no bill or amendment seeking to make any change in-(a). this section; or(b). the provisions of sections 3 and 5; or(c) . The provisions of the Constitution of India as applicable in relation to the State.Shall be introduced or moved in either house of the Legislature “